CIPP/US Study Guide
Chapter 12: Workplace Privacy

Intercepting Communications: Wiretap Act and ECPA

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The Wiretap Act and ECPA generally prohibit intercepting wire, oral, and electronic communications. Two workplace exceptions: consent (party or one party consents) and the ordinary course of business. Listening to a purely personal call risks liability; many states require all-party consent to record calls.

The Wiretap Act and ECPA generally prohibit intercepting wire communications (calls), oral communications (hidden bugs), and electronic communications (emails). Interception without an exception is a criminal offense with a private right of action.

  1. Consent exception - a party to the call, or one party who consents, permits interception
  2. Ordinary course of business exception|Ordinary course of business exception - an employer providing the communication service may intercept in the normal course of business
Personal calls and state consent rules

Listening to an employee's purely personal call risks violating the wiretap laws. Because courts split on the breadth of 'ordinary course of business,' many employers rely on consent. State laws differ: some require one-party consent, others require all-party consent to record calls.

Key terms - quick answers

What is “Wiretap Act”?
Federal statute prohibiting interception of wire, oral, and electronic communications unless an exception applies; provides criminal penalties and a private right of action.
What is “ECPA”?
Electronic Communications Privacy Act; with the Wiretap Act, restricts interception of communications such as emails and calls.
What is “Ordinary course of business exception”?
Permits an employer providing communication services to intercept in the normal course of business; courts split on its breadth.

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